Court of Appeals Rules Custodians Must Provide Electronic Records When Requested

 In Lueders v. Krug, Press Releases, WILL News

WILL amicus brief argued law requires public officials to provide electronic records upon request.

The News: Today, the Wisconsin Court of Appeals ruled that when a record request specifically asks for documents in electronic format, the record custodian must provide those records in electronic format. Some officials around the state – particularly in the state legislature – have made it a practice to waste time and taxpayer resources by printing out emails and other records. Today’s decision stops that practice.

In 2018, WILL filed a similar lawsuit against Representative Jonathan Brostoff (D-Milwaukee), which resulted in the Representative turning over electronic files and paying our legal fees.

The Lawsuit: On June 21, 2016, Bill Lueders, President of the Wisconsin Freedom of Information Council and Editor of The Progressive magazine, filed a record request for certain emails from Representative Scott Krug (R-Nekoosa), later specifying that his request was for electronic copies. Instead, Krug provided paper copies. Lueders sued, and the Dane County Circuit Court concluded that Krug violated the Open Records Law.

Krug appealed, and on appeal, the Wisconsin Institute for Law & Liberty (WILL) filed an amicus brief, joined by the Wisconsin Freedom of Information Council, the John K. MacIver Institute for Public Policy, the Badger Institute, and Americans for Prosperity-Wisconsin. The brief argued that the plain text of the records law requires the provision of electronic copies upon request. The brief offered examples of how custodians had frustrated requests by unnecessarily printing massive quantities of copies and demanding payment for each page.

The Court of Appeals, District II (Judges Mark Gundrum, Paul Reilly, and Justice-elect Brian Hagedorn) affirmed the lower court, establishing a precedent that applies to custodians statewide. The court concluded that the original electronic email contains significant amounts of metadata that is lost when printed out. Because a printout is missing important information from the original record, it is not a “copy” of the record and does not satisfy a request for an electronic record.

The Quote: Tom Kamenick: Deputy Counsel and open government expert at WILL: “Public officials must stop playing games with record requests. Copying an electronic file onto a flash drive or sending it via email is cheap and easy, and there is no reason to waste time and taxpayer resources printing out emails one at a time. We’re pleased the court of appeals agrees and we hope Representative Krug accepts the decision and doesn’t continue fighting a hopeless battle.”

Read the Court of Appeals decision HERE.

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